New Delhi, Aug 27 (IANS) The Supreme Court on Thursday decided to examine the issue whether there was any constitutional embargo on the powers of the state government to frame a law for awarding compensation to repair and restore religious structures damaged during rioting as state failed to uphold the law.
A bench of Justice Dipak Misra and Justice Prafulla C. Pant said this as the Gujarat government argued that there was a wall separating state and religion and constitution’s article prohibited use of state finances for undertaking the repair and restoration of religious structures damaged during 2002 post Godhra riots.
The bench said that though it would address the issue by itself but in case it was needed, then it would refer the matter to a larger bench as senior counsel Yusuf Hatim Muchhala referred to an earlier judgment in T.M.A.Pai case to contend that there was no wall under article 27 that prevented the state from funding repair or restoration of religious structures damaged during 2002 riots as it failed in its constitutional mandate to protect them.
The apex court is hearing Gujarat government’s plea challenging the state high court 2012 order, directing it to compensate for the damages caused to religious structures during the 2002 post Godhra riots. Muchhala appeared for the NGO I.R.C.G on whose petition the high court had ordered the compensation.
“Till now parliament has not made any law, the state (Gujarat) has also not made any law but have a policy not to fund the repair and restoration of religious places of any religious denomination (damaged during riots or on account of natural calamity). In the absence of a law, can the court say that your policy is unconstitutional and you must undertake the repair and restoration of the damaged religious structures?” the court asked Muchhala.
“If court wants to direct the state (to fund the repairs) it must be constitutional tort, how can it (court) say that state is bound to do it?” it asked.
The court framed two question to be addressed both by the Gujarat government and the NG during the next hearing of the matter on September 17, whether damages under the principle of constitutional tort could be sought from the state for its failure protect the places of worship during rioting.
The second question framed by the court was that if a state has not framed a policy on compensating the damages to religious places during rioting and “that being the bedrock can court issue a mandamus asking the state to frame such a policy”.
Justice Misra pointed out that there was limitation on issuing mandamus as “there can’t be any kind of judicial enthusiasm though there can be a judicial statesmanship”.
The court asked Additional Solicitor General Tushar Mehta to inform it the status of the repair and restoration of remaining 37 religious places that according to its 2010 affidavit before the state high court were yet to be repaired.
Gujarat government had told the court that of the 537 religious places, 500 have already been repaired by the respective trusts managing them.